The US Supreme Court's recent order [PDF] refusing to reinstate an injunction against a Texas law restricting abortionthereby allowing that law to go into effectwas a narrow ruling issued in a unique procedural posture. The court was asked to vacate an appellate court's decision to stay a district court's permanent injunction pending the appellate court's own review of the law on the merits. While the Supreme Court ultimately decided that plaintiffs had not met the heavy burden to overturn an appellate stay in such circumstances, its decision should not be seen as forecasting its views on the constitutionality of the Texas law. Still, the reasoning in Justice Antonin Scalia's concurring opinion, joined only by Justices Clarence Thomas and Samuel Alito, in support of the court's decision exhibits an alarming willingness to permit lower courts to prioritize a state's interest in enforcing a law in the face of a constitutional challenge, even where the rights deprivations that the law will allegedly cause are indisputably irreparable.

In July 2013, the Texas legislature passed House Bill No. 2 ("HB 2"), a bill enacting various restrictions on abortion in the state, including a requirement that all physicians who perform abortions have active admitting privileges at a hospital that provides obstetrical or gynecological services not more than thirty miles from where the abortion is performed. The Center for Reproductive Rights, the American Civil Liberties Union and Planned Parenthood filed suit in September 2013 on behalf of Texas abortion providers and their patients, challenging this provision as unconstitutional because it is without medical justification and because it imposes an undue burden on women seeking to terminate their pregnancies, in violation of the standard set forth in Planned Parenthood v. Casey. Following a bench trial in October, the federal district court in Austin issued a permanent injunction (PDF) against the admitting privileges requirement, finding that "admitting privileges have no rational relationship to improved patient care" and place "an undue burden on a woman seeking an abortion" because the requirement would force clinics to close, leaving large parts of the state without an abortion provider.

Within twenty-four hours of the district court's decision, Texas filed an emergency motion with the US Court of Appeals for the Fifth Circuit, seeking to stay the injunction pending resolution of their appeal, which they requested be heard on an expedited basis. The Fifth Circuit granted both of the state's requests, calendaring the case for oral argument in early January and taking the extraordinary step of staying the district court's injunction. In so holding, the Fifth Circuit focused almost exclusively on the state's likelihood of success on the merits (an issue which had not yet been fully briefed) despite the well-settled standard clearly laid out in Nken v. Holder that a court must additionally consider (1) whether the party would be irreparably injured absent a stay; (2) whether issuance of a stay would substantially injure other parties; and (3) where the public interest lies. Here, approximately one-third of Texas's abortion clinics would have been forced to stop performing abortions immediately when the law requiring admitting privileges went into effect, leaving women in large swaths of Texas without access to safe and legal abortion, a harm that cannot be remedied at a later date. By contrast, the state's only asserted harm was a generalized interest in enforcing a law. Nonetheless, the Fifth Circuit found (PDF) that the state "necessarily suffers the irreparable harm of denying the public interest in the enforcement of its laws" and that this interest, coupled with the state's likelihood of success on the merits, was enough to outweigh the plaintiffs' "strong showing that their interests would be harmed by staying the injunction." The Fifth Circuit thus stayed the district court's injunction, allowing the admitting privileges requirement to go into effect.

Plaintiffs, in turn, filed an application with Scalia requesting that the Supreme Court overturn the stay entered by the Fifth Circuit. Put differently, plaintiffs asked the court to take the relatively uncommon step of vacating the Fifth Circuit's stay (thereby reinstating the district court's permanent injunction) to immediately preserve the Fifth Circuit's ability to issue a remedy in favor of the plaintiffs and, in the longer term, to guard the Supreme Court's ability to grant plaintiffs' requested relief if certiorari is ultimately granted on the merits. Plaintiffs made this application because the Fifth Circuit's action caused approximately a third of the abortion clinics in Texas to stop performing abortions immediately, thereby preventing women from accessing safe abortion at a rate of about 20,000 women each year, and because some of those clinics would have to close soon and would be unable to reopen even if the law is later struck down, thus rendering the shortage in services and the geographical gaps in coverage permanent.

Despite these facts, five Supreme Court justices voted to deny the plaintiffs' application. Scalia's concurring opinion, joined by Alito and Thomas, suggested that the Fifth Circuit did not commit any cognizable error by failing to preserve the status quo, even where the only alleged injury to the state is an inability to enforce the challenged law for several additional months. In so finding, Scalia heavily credited the significance of the state's interest in enforcing its lawa factor that will always weigh in the government's favor in any litigation challenging the constitutionality of a lawand failed entirely to balance this interest against the likelihood of irreparable injury to the plaintiffs and the women whose constitutional rights they seek to defend.

The Supreme Court's willingness to let stand the Fifth Circuit's stay of the district court's injunction when the balance of harms tilted so heavily against the state could have implications in a variety of contexts where constitutional rights are at stake. Indeed, based on Scalia's reasoning, when a difficult question of law arises in civil rights litigation, an appeals court may stay a district court's injunction, regardless of the extent of the harm to the plaintiffs, because of the strength of the state's interest in enforcing its validly-enacted statutes. Granting such weight to a general interest present in all cases where states seek to enforce their laws is hard to square with the requirement laid out in Greene v. Fair that district court decisions should be stayed only in the most "extraordinary" or "exceptional" cases.

Perhaps in an effort to cabin the implications of his analysis, Scalia specifically referenced federalism considerations as support for the Fifth Circuit's decision, suggesting that only an especially high likelihood of success on the merits can trump a state's interest in enforcing its laws. But these principles have no role to play when federal courts are assessing whether state statutes impede rights protected by the US Constitution. An appellate court's review of an application to stay a district court judgment enjoining a statute on constitutional grounds should not vary depending on whether congress or a state government enacted the law at issue.

Finally, while the Supreme Court refused to vacate the Fifth Circuit's stay of the district court's injunction pending appeal, nothing in the concurring opinion indicates that appellate courts confronted with similar applications should follow the same course. Indeed, even Scalia, Alito and Thomas recognized that "reasonable minds can perhaps disagree about whether the Court of Appeals should have granted a stay in this case." Rather, once an appellate court has acted, the burden of overturning such a stay creates a high bar for plaintiffs, making it even more important that appellate courts exercise their power judiciously in cases involving constitutional rights.

Esha Bhandari is a Staff Attorney and Jennifer Sokoler is a Legal Fellow at the Center for Reproductive Rights.